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Wednesday, November 25, 2015

Holidazed and Confused: Answers to Common Holiday Employment Questions

The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:

Are employees entitled to time-and-a-half pay for holidays worked? No – unless time worked on a holiday includes overtime hours worked above 40 in the work week. Under federal and state law, there is no legal requirement for extra holiday work pay in Minnesota unless those hours consist of overtime hours or a contract (such as a collective bargaining agreement) requires extra pay. Wage and hour law can vary state to state, though, so employers with non-Minnesota employees should check on other state laws.

In the event of a blizzard-related work absence, how should employees be paid? This depends on whether the employee is exempt or non-exempt under wage and hour laws. Absent an employment agreement stating otherwise, if non-exempt employees are unable to work because of inclement weather, they do not need to be paid. Additionally, employers can have a policy requiring employees to use vacation time for a weather-related absence so long as the policy is in writing and is clear. On the other hand, exempt employees (e.g. those not eligible for overtime pay) must be paid their full salary for any week in which they perform work. That means that if a snowstorm arrives on Cyber Monday and makes the roads impassable for three work days, exempt employees would still receive their full salary if they worked the other days of that week. Similarly, remote work by an exempt employee during a week will typically require payment of the employee’s full salary for the week. Deducting wages from an exempt employee’s salary for inclement weather can jeopardize that employee’s classification and could create FLSA wage/hour liability for the employer. An employer with a bona fide vacation plan may, however, use accrued vacation benefits to fund an exempt employee’s salary where a vacation policy states that the employer requires use of vacation pay for weather-related absences.

Can an employer require its employees to get the flu vaccine? Generally, no. Unless the employer is in a particularly safety sensitive industry, like healthcare, flu vaccinations typically cannot be absolutely required. Employers that are considering implementing a “mandatory” flu vaccination program should consult with legal counsel to determine if a mandatory requirement is permissible. In addition, any mandatory program needs to include a process to address employee requests for exemptions for religious, health, or other reasons.

How is FMLA leave calculated during a holiday week? It depends. When an employee is absent the full week, the whole week – including any holidays – can be counted as FMLA leave. If, however, the employee works part of the week, any holidays in the week cannot be counted as FMLA leave unless the employee was scheduled to work the holiday and did not due to the FMLA condition. Also, for weeks in which the employer’s business activity is temporarily closed – for example, a school’s winter break – the employer cannot count the week against an employee’s FMLA entitlement. FMLA calculations are nuanced, so, when in doubt, consult with counsel.

What steps can help minimize potential holiday party risks? While many employers host holiday parties and don’t want to be a holiday “Scrooge,” it is important to carefully plan the celebration to minimize potential legal risks. First, when planning a holiday party, have a holiday theme that is not religious in nature and is respectful of the different religious beliefs of employees. Second, do not require employee attendance, instead making clear that participation is voluntary. Third, consider conducting harassment training or redistributing your employee harassment policy in advance of the party. Fourth, limit alcohol in a reasonable manner, and consider arranging ahead of time for on-call designated drivers or cabs. Finally, when it comes to food, have a variety of options available keeping in mind the needs of vegetarians, vegans, and those with food allergies.

As these questions and answers illustrate, the holidays are indeed a special time of year. Despite the inherent long “to-do” lists of the season, it pays to make sure your workplace is ready for lawful and safe festivities.

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